Francis Head v. Director of the Department of Motor Vehicles

Case Number

25CV03848

Case Type

Hearing Date / Time

Wed, 09/03/2025 - 10:00

Nature of Proceedings

Hearing on Petition for Alternative Writ of Mandate

Tentative Ruling

For Petitioner Francis Head: Self-Represented

For Respondent Director of the Department of Motor Vehicles:     No appearance

RULING

For the reasons set forth herein, the Court orders appearances by both parties, either virtually or in person, for the purpose of scheduling the filing of the administrative record, briefing the issues, and setting a hearing date.

The operation of the order suspending or revoking Petitioner’s license is not stayed pending the hearing and final judgment of the Court in this matter. The suspension will remain in effect until otherwise ordered.

The Court clerk will serve notice of this ruling and the scheduled dates.

Background

This action commenced on June 23, 2025, by the filing of the original Petition for Alternative Writ of Mandate by Petitioner Francis Head against Respondent Director of the Department of Motor Vehicles (“DMV” or “Respondent”). On June 25, 2025, Petitioner filed the operative Amended Petition for Alternative Writ of Mandate (the “amended petition”).

According to the amended petition, Petitioner’s driver’s license was ordered suspended or revoked on April 17, 2020. Although the petition notes that a copy of the DMV’s order is attached to the petition, it is not.

By way of the amended petition, Petitioner seeks: “An alternative writ of mandate issue under the seal of the Court commanding Respondent Director of the DMV to set aside and revoke the DMV’s order suspending or revoking Petitioner’s license or to show cause before the Court at a time and place hereafter to be specified by the Court why it has not done so, and why a peremptory writ should not issue.”

On August 7, 2025, Petitioner filed a proof of service indicating that he served DMV with: (1) Alternative Writ of Mandate Order and Order to Show Cause – Non DUI [Note: The Court has not issued an Order to Show Cause, so it is unclear how Petitioner could have served one on DMV]; (2) Amended Civil Case Cover Sheet Addendum; (3) Attachment; (4) Blank Order Staying Suspension or Revocation – Non DUI; (5) Civil Case Cover Sheet; (6) Notice of Hearing; and (7) Petition for Alternative Writ of Mandate.

As this was brought as a petition for alternative writ and the Court has not issued a writ or an order to show cause, the DMV is not yet required to appear, and has not yet appeared, in the action.

Analysis

“A writ of mandate may be issued by any Court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person. (Code Civ. Proc., § 1085, subd. (a).)

“The writ may be either alternative or peremptory. The alternative writ must command the party to whom it is directed immediately after the receipt of the writ, or at some other specified time, to do the act required to be performed, or to show cause before the Court at a time and place then or thereafter specified by Court order why he has not done so. The peremptory writ must be in a similar form, except that the words requiring the party to show cause why he has not done as commanded must be omitted. (Code Civ. Proc., § 1087, italics added.)

“In an administrative mandamus case, the administrative record contains the evidence introduced at the administrative hearing. [Citation.] The superior Court uses its independent judgment to review DMV hearing decisions which suspend driver’s licenses. [Citation.] Under this standard of review, the Court must independently weigh the evidence and may make its own findings.” (Ocheltree v. Gourley (2002) 102 Cal.App.4th 1013, 1017.)

“Where the writ is issued for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer, the case shall be heard by the Court sitting without a jury. All or part of the record of the proceedings before the inferior tribunal, corporation, board, or officer may be filed with the petition, may be filed with Respondent’s points and authorities, or may be ordered to be filed by the Court. Except when otherwise prescribed by statute, the cost of preparing the record shall be borne by the Petitioner. Where the Petitioner has proceeded pursuant to Article 6 (commencing with Section 68630) of Chapter 2 of Title 8 of the Government Code and the Rules of Court implementing that section and where the transcript is necessary to a proper review of the administrative proceedings, the cost of preparing the transcript shall be borne by the Respondent. Where the party seeking the writ has proceeded pursuant to Section 1088.5, the administrative record shall be filed as expeditiously as possible, and may be filed with the petition, or by the Respondent after payment of the costs by the Petitioner, where required, or as otherwise directed by the Court. If the expense of preparing all or any part of the record has been borne by the prevailing party, the expense shall be taxable as costs.” (Code Civ. Proc., § 1094.5, subd. (a).)

“Judicial review may be had by filing a petition for a writ of mandate in accordance with the provisions of the Code of Civil Procedure, subject, however, to the statutes relating to the particular agency. Except as otherwise provided in this section, the petition shall be filed within 30 days after the last day on which reconsideration can be ordered. The right to petition shall not be affected by the failure to seek reconsideration before the agency. On request of the Petitioner for a record of the proceedings, the complete record of the proceedings, or the parts thereof as are designated by the Petitioner in the request, shall be prepared by the Office of Administrative Hearings or the agency and shall be delivered to the Petitioner, within 30 days after the request, which time shall be extended for good cause shown, upon the payment of the cost for the preparation of the transcript, the cost for preparation of other portions of the record and for certification thereof. The complete record includes the pleadings, all notices and orders issued by the agency, any proposed decision by an administrative law judge, the final decision, a transcript of all proceedings, the exhibits admitted or rejected, the written evidence and any other papers in the case. If the Petitioner, within 10 days after the last day on which reconsideration can be ordered, requests the agency to prepare all or any part of the record, the time within which a petition may be filed shall be extended until 30 days after its delivery to him or her. The agency may file with the Court the original of any document in the record in lieu of a copy thereof. If the Petitioner prevails in overturning the administrative decision following judicial review, the agency shall reimburse the Petitioner for all costs of transcript preparation, compilation of the record, and certification.” (Gov. Code, § 11523.)

Petitioner has not filed the administrative record, and it is unclear if he requested a copy as required.

 

“[W]here the Court has no administrative record, it cannot weigh the evidence. Nor may it decide the sufficiency of the evidence supporting the administrative decision. [Citation.]” (Ocheltree v. Gourley, supra, 102 Cal.App.4th at p. 1017.)

“The alternative writ of mandate serves a function similar to that of a summons. [Citation.] In an administrative mandamus case, it is reversible error for the superior Court not to issue an alternative writ where the petition alleges grounds for relief.” (Ocheltree v. Gourley, supra, 102 Cal.App.4th at p. 1018.)

“The Court will issue an alternative writ when the petition sufficiently alleges a cause of action which, if proven, could lead to the issuance of a final or peremptory writ. [Citation.] Administrative proceedings should be completed before the issuance of a judicial writ. [Citation.] The writ is not a final Court adjudication but is merely an order for the agency to show cause or, in the “ ‘alternative,’ ” to comply. The agency is placed on notice that Petitioners have made a sufficient showing to cast doubt upon the validity of its decision.” (Save Oxnard Shores v. California Coastal Com. (1986) 179 Cal.App.3d 140, 149.)

“ ‘ “Where [. . .] it is clear from the petition that the peremptory writ ought not to issue, the alternative writ should be denied, thus avoiding delay and expense to the parties’ ”. In neither the statutory nor the case law is there any authority for treating the issuance of an alternate writ of mandate as a matter of right, or requiring a Court to grant such writ merely as an ‘ “appropriate step in the proceedings” ’ . . .” (Patterson v. Board of Sup'rs of Los Angeles County (1947) 79 Cal.App.2d 670, 671–672.)

Here, the petition is ambiguous as to whether there are grounds for issuance of a peremptory writ. Petitioner provides very little information as to why he believes the suspension of his driving privileges was improper. However, the Court cannot determine conclusively that there are no grounds for issuance of a preliminary writ. As such, the Court will order the DMV to respond to the petition and for the parties to provide briefs.

The Court will require appearances for the purpose of scheduling the filing of the administrative record, briefing the issues presented, and scheduling a hearing on the writ.